Florida Central and Western Railroad Company, Appellant, v. William M. Bostwick and Ozias Buddington, surviving Executor of the last will of Isaiah D. Hart, Deceased, Appellees, 55 Fla. 665

Taylor, J. —William M. Bostwick sued the appellant railroad company in ejectment in the circuit court of Duval county for recovery of the possession of lot 27 and the east half of lot 28 abutting upon the St. Johns river in the city of Jacksonville. The defendant railroad company then filed its bill in equity in the circuit court of Duval county against the said Bostwick 'and one Ozias Buddington. as surviving executor of the last will and testament of Isaiah D.

Hart, deceased, alleging that the said lots of land formerly belonged to said Hart who> was. a stockholder and director in said railroad company; that' said Hart-died about the year 1861; that in May, 1857,. in consideration of $10,800 of the capital stock of said raiiroad company’s predecessor then issued and delivered to him the said Hart sold and agreed to convey to said railroad company the said two lots with others, and then placed the said company in the actual possession thereof and that it had ever since continued in such possession using such land for its railway tracks, depots, warehouses, etc.; that after Hart’s death the said Buddington. as his surviving executor, procured the sale of said lots by an order of the county judge of said Duval county, and that at the sale thereof by a commissioner the said Bostwick became the purchaser thereof, but that at said sale befoire his purchase thereof the said Bostwick was given full notice of the claims and status of said railroad company towards said property and that he bought with full notice thereof.

The bill prayed that said ejectment suit might be enjoined and that the deed of the commissioner to said Bostwick under said probate court proceedings might be cancelled and annulled,- and that the said Buddington as executor of Isaiah D. Hart might be ordered 'and decreed to convey said lots to the complainant railroad company. Temporary injunction was granted as prayed, restraining the further prosecution of said ejectment suit until the further order of the court.

The defendants answered the bill, -replications to the answers were filed, a master was appointed to take and report the evidence; a large amount of evidence was taken and reported by the master and upon the pleadings and -report of the testimony by the -master the cause was awaiting final hearing and disposition by the chancellor, when the historic fire of the 3rd day of M|ay, 1901, occurred in the city of Jacksonville in which all of the records and proceedings in said equity cause were practically destroyed by said fire including the -evidence taken and reported therein.

Because of the disqualification of the judge pre- ■ siding over the circuit court of Duval -county the cause had been transferred to the circuit court for Alachua county. On June 6th, 1907, the defendant 'in said equity cause, William M. Bostwick, filed his petition in -the -circuit court of Alachua county, under the provisions of

section 1996 General Statutes of 1906, for the re-establishment of the lost .and destroyed papers and records and files in said cause enumerating divers and various papers, depositions, affidavits, agreements of counsel, and parts of-the evidence in said cause and the pleadings therein in his said application for re-establishment.

To -this application, for re-establishment the complainant railroad company filed ah answer, admitting the practical destruction of the papers, files and -proceedings in said cause by said fire, but alleging that in divers specified particulars the copies presented of the destroyed papers and proceedings for reestablishment by the said defendant -were not substantial copies of the destroyed -originals, and alleged further that the papers and proceedings prayed_ to be re-established by the s-aid Bostwick do not constitute all of the proceedings in said cause existing on the said 3rd day of May, 1901; that certain evidence Introduced before the master consisting of various pertinent excerpts from the record books of the Florida, Atlantic and Gulf Central Railroad and referred to in said answer as Master’s Exhibits A, B, C, D -and E, were totally destroyed by said fire and' were a part of the evidence taken by the -master in- said cause, and were omitted from tire said petition for re-establishment filed by the said defendant Bostwick.

That-there were other specified papers, pleadings, orders and proceedings in said cause also destroyed by said fire that were omitted from the application of the said defendant Bostwick for re-establishment.

The said' answer of the complainant exhibited substantial copies of all of said alleged -omitted evidence, papers, orders, pleadings and proceedings in said cause, and said answer prayed that all of the same might be re-established in place and stead of the destroyed originals, thereof in and by the same -order re-establishing the papers and proceedings in said -cause -sought in the petition of -said Bostwick to be reestablished.

On the hearing of the s-aid application for re-establishment of said destroyed papers .and proceedings the defendant Bostwiok moved the court to strike from the said 'answer of the complainant to said re-establishment proceeding all that part of said answer that alleged that divers papers, evidence, pleadings, orders and proceedings in said cause had also been destroyed iaod had been omitted from said defendant’s application for re-establishment of the proceedings in said cause and praying' that the said omitted matter might also be re-established along with the other parts of said proceedings sought to be re-established by said defendant Bostwick.

This motion to strike was granted by the judge to which exception was taken and such ruling is assigned as error. The defendant Bostwick also filed'objections to said answer in said reestablishment proceeding covering the same matter and grounds included in his said motion to strike part of said answer. These objections to said answer were also sustained by the judge, and this ruling is also assigned as error. ‘ The complainant railroad company then filed an application for rehearing of the said motion to' strike part of the answer filed by it in said re-establishment proceeding.

This application was also denied except in some unimportant particulars, and this ruling is also assigned as error. All of these orders and rulings in said re-establishment proceeding in said cause, the complainant has brought here for review by appeal. The court below erred in these rulings.

Section 1996 of the General Statutes of 1906, under which this re-establishment proceeding Was had, provides as follows: “Lost or destroyed proceedings., and any paper or file affecting them, in any suit pending and under termiined in any court, may be re-established as follows: The person desiring such re-establishment shall file a substantial copy of such proceedings or writing in the circuit court, .and shall give ten days notice in writing to all parties to the suit or their attorneys of record, of an application to the court for the re-establis'hment of such proceedings, or paper or file.

Such notice shall be personally served at least ten days before the time fixed for' such 'application. Upon the hearing of such application the judge may, in such manner as he may think 'best, ascertain the facts and upon such ascertainment determine the application.” It will be observed that this provision of law is applicable to the re-establishment of lost or destroyed proceedings or papers in pending causes that are undetermined, and that by its terms either the entire proceedings, or any separate paper or file affecting such a cause may be reestablished when lost or destroyed.

The application of the defendant -Bostwick for re-establishment showed practically that the entire proceedings in said cause and every part thereof had been destroyed in the disastrous fire in Jacksonville of May 3rd, 1901.

The answer of -the complainant in said cause showed that the copies of the papers and proceedings presented for re-establishment with the application of the defendant Bostwick were not copies of the entire proceedings in said cause that had been so destroyed and exhibited to the -court, • wiith substantial proofs thereof, substantial copies of -divers other material papers, evidence, pleadings and proceedings in said -cause,’ that had also been destroyed by said fire, that had -been omitted from- the application for re-establishment of said defendant Bostwick, and- prayed that the said omitted parts of said proceedings in said cause should be re-established along with the other parts thereof in the same order of re-establishment.

In other words the effort of the complainant railroad company by its answer, was to secure a complete re-establishment -of the entire destroyed proceedings in said cause, instead of -the partial re-establishment sought by the application of the defendant Bostwick. According to our

interpretation of the quoted provision of the statute, when an application is made, as here, to re-establish the destroyed proceedings in a pending and undetermined cause if it shall appear that the entire proceedings in said cause have been destroyed, and that the re-establishment is sought for the purpose of having said cause brought to a determination, that the judge -should -be careful to re-establish the entire record and proceedings in said cause, and not a mere part or portion thereof that are especially sought to .be re-established by the one side or the other in said cause.

The investigation in such a case should be limited to the inquiry: What was the substance of the original record sought to be restored? Vail v. Iglehart, 69 Ill. 332; Kehoe v. Rounds, 69 Ill. 351; Pearce v. Thackeray, 13 Fla. 574. Any -other course opens too wide a door to imposition and injustice. The court in making an order for the re-establishment of a part only of the proceedings constituting the record in said cause as and for the entire record therein erred and put it in the power of the party applying for such partial restoration to perpetrate wrong and injustice upon the other party to said cause.

An ' answer, such as was filed here by the complainant to such application for re-establishment, was the proper way to bring it to the attention of the court that a partial reestablishment only was sought, and that entire restoration was proper to be done. The orders of the court appealed from- in said cause are hereby reversed at the cost of the appellee William M.

Bostwick, and the cause remanded with directions for the rendition of an order therein reestablishing the entire record and complete proceedings in said cause including all of the copies -of the destroyed papers, evidence and proceedings in said cause that were exhibited to ' the court for re-establishment with the answer of -the complainant railroad company to the petition of the defendant, Bostwick, for re-establishment, unless t'he petitioner, Bostwick, can show at the hearing of said petition by a preponderance of proofs that such exhibits are not substantial copies of the destroyed originals thereof, or that there were in fact no such originals.

Hocicer and Parkhill, JJ., concur; Shackleford, C. J., and Whitfield, J., concur in the opinion. Cockrell, J., disqualified.